Wednesday, 24 June 2009

Open Letter on the Equal Opportunity Commission Bill

To sign this letter, please click here, or email the Centre for the Study of Social Exclusion. Additional resources (including comparative legislations) are available here.-------------------------------------------------------------------------------------22nd June 2009

In her address to Parliament on 4 June 2009, the Hon’ble President promised the constitution of an Equal Opportunity Commission to combat discrimination. We welcome this announcement, and write to you to further the public debate on equality of opportunities.

As you are aware, the Rajinder Sachar Committee’s ‘Report on Social, Economic and Educational Status of the Muslim Community of India’ (2006) recommended the constitution of an Equal Opportunity Commission to look into the grievances of deprived groups, and that the idea of providing incentives for diversity should be explored. Two expert committees under Dr. Madhav Menon and Dr. Amitabh Kundu were constituted to consider these recommendations respectively. The Menon Committee Report (2008) proposed an Equal Opportunity Commission Bill to prohibit discrimination against ‘deprived groups’ defined on certain grounds such as sex, disability, religion, caste, language etc. The Kundu Committee Report (2008) recommended the constitution of a Diversity Commission to oversee the incentivisation of diversity in education institutions, employment establishments and housing societies. The proposed ‘diversity index’ is sensitive to religion, caste and sex.

These recommendations represent a paradigmatic shift in India’s approach to equality. Moving beyond an exclusive focus on reservations, they explore a combination of antidiscrimination and diversity promotion measures to pursue social justice. They also recognise that discrimination takes place on multiple grounds, and that compartmentalising suffering through group-specific measures may spawn politics of resentment and competition. Finally, they transcend the divide between public and private actors and apply equally to all. Yet, the obligations they seek to impose on private actors are no more onerous than those imposed on their counterparts in many liberal democracies.

For these reasons, we laud the recommendations and support the proposed measures for equal opportunities and diversity. However, the draft proposals leave too many unresolved issues for the Commission to sort out in the future. We think that this is a recipe for much litigation. Rights and obligations, insofar as it is possible, should be clearly laid down in the legislation itself. We make the following suggestions towards broadening the public debate on these proposals:

A. Interlinking equal opportunity and diversity:(i) Antidiscrimination and diversity promotion are related ideals. They should form part of a single ‘Equality Bill’ with a single regulatory and enforcement commission. Distinct bodies for monitoring the prohibition on discrimination and promotion of diversity is not only wasteful, but may result in counterproductive turf-wars.(ii) The connection between the ideas is not merely institutional but also conceptual: the ‘diversity gap’ in any establishment should be relevant to (but not determinative of) the adjudication of complaints of discrimination against that establishment.

B. A general duty to reduce inequality:

(iii) The objective of reducing socio-economic deprivation should be taken into account by all public bodies (widely defined to include not only bodies established by the Constitution or any law, but also any other bodies performing public functions) while framing policy in their respective fields of activity.

C. Scope of protection against discrimination:

(iv) The list of grounds on which discrimination is prohibited in the Menon Committee Report includes ‘sex, caste, language, religion, disability, descent, place of birth, residence, race or any other...’ ground. While we welcome an open-ended list in order to accommodate legitimate demands in the future, other autonomy-infringing grounds like ‘pregnancy, sexual orientation, gender identity, occupation, skin-colour, political opinion, age, membership of trade unions or other associations, number of children, tribe, marital status’ should also be included.(v) The ‘deprivation index’ should include political, social, cultural and material deprivation, evidenced by inadequate representation of the group in public institutions, violence and hostility faced by its members, prejudice and negative stereotypes prevalent against the group, and its economic, social and educational backwardness.(vi) The legislation should have a clear statement prohibiting ‘direct discrimination’ or ‘indirect discrimination’ against, and ‘harassment’ or ‘victimisation’ of, any member of a deprived group defined by any of the protected grounds. These terms should be clearly defined. Discrimination based on ‘food preference’, when it has a disproportionate impact on a deprived group, should be expressly provided as an instance of indirect discrimination.(vii) The legislation should clearly provide that the claimant does not have the onus of proving discriminatory intent.(viii) Direct discrimination, as a general rule, should not be justifiable. Any exceptions (for example, medium of instruction in schools vis-a-vis language discrimination, or age of majority vis-a-vis age discrimination) should be specifically provided in the statute. Indirect discrimination may be justified only if the impugned measure is a proportionate means of achieving a legitimate objective—mere reasonableness of the measure should not be sufficient. Harassment and victimisation should not be justifiable under any circumstance.(ix) The sectors in which discrimination is prohibited should not be restricted to employment and education. We agree that a phased introduction of prohibition, as recommended by the Menon Committee Report, may be desirable for reasons of feasibility. However, given the prevalence of discrimination in the housing sector, its exclusion from the immediate scope of the legislation is not warranted.(x) All public bodies (widely defined to include private bodies performing public functions) and political parties should be required to refrain from discriminating in all their activities.

D. Scope of diversity promotion:

(xi) The ‘diversity index’ proposed in the Kundu Committee Report is sensitive to sex, religion and caste. We suggest that tribe and language should also be valid grounds for formulating a diversity index.(xii) A clear statutory obligation to reduce diversity gap should be imposed on all public bodies (widely defined to include private bodies performing public functions) and other establishments that contract with governments.(xiii) Diversity promotion should be a precondition for all government subsidies, grants, contracts etc, not only at the central level, but also at the state and local level. Establishments with narrower diversity gaps should get preferential access to governmental grants etc.(xiv) Bodies and establishments covered by the two preceding clauses should publish their diversity gaps and their plans to promote diversity. Citizens should also have an enforceable right to this information.(xv) In case of establishments not covered above, the right to information regarding their diversity gap should nonetheless be available to their employees/ residents/ applicants/ students etc.

E. Enforcement Mechanism:

(xvi) The single Equality Commission should be independent of political interference, but subject to political scrutiny and judicial review, while formulating the deprivation and diversity indices. Bipartisan appointment, involvement of civil society and transparency obligations on the lines of recently constituted bodies such as the Central Information Commission should be considered.(xvii) Draft deprivation and diversity indices should be published on the Commission’s website and elsewhere for public debate before finalisation. Reasons and evidence for the identification/non-identification of any group as ‘deprived’ should also be publicly available.(xviii) Relationship with the SC/ST Commission, Backward Classes Commission, Minorities Commission, National Commission for Women, and the National Human Rights Commission should be clearly specified. Emphasis should be on co-ordination and data sharing. The Equality Commission is not based on any single identity and its proposed mandate is distinct from these pre-existing commissions. Yet, it can learn from their experiences—legislation should facilitate this institutional learning.(xix) The proposed Equality Commission in the Menon Committee Bill has extensive powers for investigation, data gathering, auditing, advocacy and advisory functions. However, the recommendatory nature of the orders and ‘codes of practice’ limits the effectiveness of the Commission. Further, while reliance on voluntary compliance and emphasis on mediated settlements is entirely commendable, it fails to elevate the ‘equal opportunities’ to the status of ‘rights’. The lack of effective enforcement machinery thus, dilutes the larger mandate of the Commission and needs to be remedied at the very outset.(xx) The scope of membership of Facilitation Centres (provided for in the Menon Committee Bill) should be widened, and its powers and functions should be clarified and strengthened.(xxi) Section 39 (b) in the Menon Committee Bill elevates the ‘Equal Opportunity Practices Code’ to the level of a “Standing Orders” under the Industrial Disputes Act, thus making it binding and enforceable. However, the single Equality Bill should clarify that the scope of establishments covered by it is wider than that under the Industrial Disputes Act, and should also provide for a mechanism for enforcement of these Codes in establishments that do not fall within the scope of the Industrial Disputes Act.(xxii) Likewise, the powers to investigate and audit in Sections 23-25 and Section 27, should culminate in effective action in the event of widespread discriminatory practices, or victimisation.(xxiii) The Menon Committee Report envisages a group-driven complaints model rather than an individual-driven one. We suggest that in addition to group rights, individual victims of discrimination should be given a right to mandatory orders, injunctions, declaratory orders, compensation, reasonable accommodation, protection orders against harassment and against victimisation for making a complaint, and the right to information about the diversity gap in their establishment.(xxiv) In case of direct discrimination, harassment or victimisation by public bodies, part of the compensation amount should be recovered from the salary of the person(s) responsible for such discrimination, harassment or victimisation.

These measures are too important to be passed in haste and without wider public debate. We hope you will give these suggestions as well as the experience of jurisdictions with comparable legislations (such as South Africa, Canada, the United Kingdom, the European Union and the United States) due consideration and circulate the draft of a single ‘Equality Bill’ for further public debate.In anticipation,

Monday, 22 June 2009

Institutional Reform in India: Can we achieve big change through small measures?

Monday, 6 April 2009

Are the youth just as short-sighted as they claim our politicians to be?

The idea of encouraging the youth to vote is now more a trend than an exception. The Lead India campaign by the Times group and the Jago Re campaign by Tata Tea are the more obvious ones. Idea Cellular's "What an idea, sir ji" takes the more obtuse line with Abhishek Bacchan condusting polls on various development issues to enable the local elected representative to take a decision that is, in truth, representative. Democracy Connect has been exploring partnerships with various media organisations with the idea of getting the youth to interact with an elected representative and discuss various issues that are of concern to them.

Yet, it is not seldom that I come across a young, educated professional complaining about the quality of our elected representatives. Just the other day I was having lunch with a friend and like all lunch, dinner, coffee conversations go, ours graduated to politics. He said he was appaled by the corruption in the present government. When I countered him saying corruption was not limited to any one government, he said it was the Congress that institutionalised corruption! But neither is it a novel concept, I retorted! To this he nonchalantly replied that it is election time and it is only now that he finds himself thinking about politics. He can't afford to expend valuable mind space in such trivial matters, especially those that aren't going to change.

Is this the way we youth think today? Then why do we begrudge politicians for living from one election to another?

Tuesday, 23 December 2008

Young Politicians respond to Mumbai Terror Attacks- Dr Chandan Yadav

Dr Chandan Yadav, National General SecretaryIndian Youth Congress

For some time now, terror has dominated all other issues in television and print media. And very rightly, too. Our commandos’ and all other security personnel deserve kudos for the great job done and for the valiant sacrifices. In the same breath, my heart goes all out to all those innocent victims who fell prey to the senseless bullets of the terrorists, in Mumbai, Delhi, Guwahati, Jaipur and elsewhere. Media personnel also deserve accolades for risking their lives in the call of duty and bringing the brutal face of terror and horror to the nation.

However, at the same time a disturbing trend has emerged. The media, especially in the aftermath of the recent strikes in Mumbai, has focussed its attention on fuelling public anger towards the political system in particular, instead of dwelling into the root causes of terror and its solution. This total and deliberate concentration on politician bashing by all media channels – English and regional – was something that the largest democracy in the world had never witnessed. Sane voices became suppressed in the whole melee that followed Mumbai. Irrationality become the order of the day in prime time television, with a few socialites appearing as “common men” in talk shows and demanding military rule for India, amongst other bizarre solutions to the terror issues at hand. A well known actress and television anchor was forced to tender an apology for her comments on NDTV’s We, the People. At the same time, another actor’s comments reflect a maturity that should be the order of the day. As he rightly said, there is no point in blaming our leaders; after all, we elect them and they are one among us. Getting rid of one lot will only bring in more of the same, therefore, what is more important is working towards a change in the system, and that has to be a joint effort.

In the midst of everything that has been taking place in the past few days, one cannot deny that democracy is still the best form of governance for India, and democracy will have politicians. The kind of situation that has developed post 26/11 is extremely traumatic for an individual like me – reasonably educated, hailing from interior Bihar, without any political inheritance or godfather – yet someone who has chosen politics and the Congress party as a means to serve the nation despite other alluring career options. And it is only because of the prevailing democratic system within the organisation that I have been given the opportunity to serve it as the national general secretary of its youth wing. My choice of politics at an age when most of my batch mates where preparing for MBA, civil services, media studies, or travelling abroad for higher studies was determined by the simple conviction that politics is not bad, although one cannot vouch for all individuals, just as in any other profession. If certain players have been convicted of match-fixing, have we stopped worshipping the likes of Tendulkar, Dravid, Dhoni or Ganguly? I also have the firm belief that one needs to be part of the system to bring about a change in it.

Under the current circumstances, democracy will take a beating if we try to prove that politics is bad. At a personal level, it will be a de motivating factor for someone like me who, through this democratic process can aspire to create an impact in my own small little way in the democratic system. The need of the hour is to strengthen democracy to attract young, educated, honest and committed youth to join politics and contribute to the task of nation building. Let me add that all these has not dampened my spirits in any way, rather, it has strengthened my faith in democracy. I am even now, proud to be an Indian and equally proud to be a politician.

Friday, 5 December 2008

Politicians respond to Mumbai Terror Attacks-Nakul Das Rai

Seeing the anger and frustration of the people, I feel that this is the time for all of us including media and public at large to stand united. This is threat to the nation.

I don’t think that there is any need to lose faith in democracy; in fact it is time to reinvest our energies in democracy. I accept that there have been unwarranted comments from some of my fellowmen; at the very least we politicians should not hurt the sentiments of the people if we cannot do anything more meaningful.

We need to rethink about our approach to development and come closer to the people.